The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1887-09-15


In the matter of application OF ne
City Of EmpOria to extend its bound
aries.
On the 10Th day OF August, 1887, the
City Council of the City of Emporia,
presented its petition to me as Judge Of
the District Court in compliance with
chapter 90 Of the laws 1885 as amend
ed by the laws of 1885. asking that
certain lands named in said petition
be annexed to said city, and request
ed me as Judge of the District Court
to make findings as to the adviSability
of such annexation, and cause the
same to be spread at large upon the
journal of the District Court.
The owners of said lands, appeared
before me at that time, and objected to
anything being done by me under said
petition, for the reason that the law
authorizing the same is unconstitu-
tional.
This alleged unconstitutionality is
predicated upon the following-amOng
other considerations.
First.-The power to extend the
limits of a municipal corporation, in
wolves the same considerations of pub
lie policy, the same adjustment of con-
flicting interests, and the same eXer-
else of the taxing power, that obtains IN
the original incorporation thereof, and
such power is purely legislative and in
no essential feature judicial.
2. The Constitution of the State OF
Kansas, by necessary implication, sep
arates the Legislative, Executive and
Judicial powers of the state govern
ment, and prohibits the encroachment
of one upon the other.
THE lazy in 0uRStiOn provides that
whenever the City Council of any city
of the second-clasS, desires to extend
the boundaries of such city, the Judge
of the District Court, upon request OF
such City Council, shall determine the
ACCESSIBILITY of the desired extension.
If such determination is favorable
thereto, then such Council, by its own
order, can crafty its said desire. In
this question of adYiSability which the
Judge must determine, as Judge, and
afterwards review as Court, II ap-
peal be taken, is involved every essen
tial consideration pertaining to said
change. The desire required of the
city council may and usually does re-
suit from a selfish wish to share an
existing public burden with the terri
tory to be acquired, and involves no
other or further consideration: Max
king the order. after the legislative
facts have been determined, is mere
formality and involves nothing. To
sustain the foregoing considerations
the following authorities were cited:
4th Kans., 142; 10Th Mich, 451; 5Sth
Mo-, I4l; LIST K. l.. j., 1914. 9Th Kans.,
500; 32d Mimi, $40; Sth o. St., 29O;
Dill. NJ. Corp, Sects. 81, 192; 31st
Kans., 12S; 10Th Ills, 152; Cooley's
Court Linn, 106.
4. 1t is further commended by owners
IF cold fnrr.itnrU fhaf a0In l1NU nnROn-
stitutional for other reasons as follows:
If the power to decide the question OF
the ACCESSIBILITY of the desired change
of boundaries is not conferred upon the
Judge as a Judicial officer, then it must
be conferred upon him as a position of
trust separate and distinct from such
Office and is in violation of Sec. Is Art.
3, of the constitution.
3. The constitution 10y Sec. 81 Art. 2,
having authorized the Legislature to
confer such powers of local legislation
and administration upon the tribunal
transacting county business as it might
deem eXpedient thereby fixed llmlta-
ton upon the right of the Legislature
to delegate its power. 1.-The expression
of one thing excludes every other. p"
This power cannot therefore be con-
ferred upon any person or tribunal other
than the county commissioners
O6. The city contends that the last pro-
position cannot be correct, because by
Sec. 5 Art. II of the constitution, the
Legislature is required to organize cities,
towns and villages by general law,
and by the general power here conferred
it may enact any general law for that
purpose, even though it confer legisla-
tive functions upon the District, or
Supreme Court, or Governor.
I. The fourth proposition is sustain
ed by the opinions of Judge Benson, of
the 4th District, 2 KanS., l.. Journal,
Page 80, and Judge Spilliman, of the
2Ist District, 2 Kans., L. Journal, Page
81. both of which were cited with ap-
parent approval in the case of the State
ex rel, etc, VS.. G.. o. Brown, 35 Kans.,
1877. The principle of construction con-
tended for in the 5tES proposition was
followed by the Supreme Court in the
case of the State VS.. Showers, "a kanS.,
269 the maxim ''EXpreSsio unuS est ex-
clusio alterius" is generally recognized
and followed. But whatever may be
the true rule as to these propositions,
conceive the rule that all the provisions
of the constitution.muSt be so construed
as to harmonic with each other. IS
without exception, and this rule for
bids in my Judgment the construction
! contended for by the city in PROPOSE
| ton s." The separation of the powers
| of the Government are as absolute and
| imperative as if expressed in the most
| pertinent and positive language posi-
| bic, and whatever may be the power OF
the Legislature to delegate Legislative
power to local tribunals, it cannot
/ impose legislative functions upon the
| District Court or the Judge thereof.
| This separation of the coordinate
branches of the Government is so fan
fundamental, so indispensable, to the
safety and stability of good govern
ment, that courts ought not by any
mere construction, permit it to be IN
the least infringed upon. Nothing
short of clear and unmistakabl6
command in the Constitution itself
| will Justify the encroachment of one
department of the Government upon
the other.
To facilitate the city in obtaining
the opinion of the Supreme Court upon
these questions, / find that ma
terial part of the lands, sought to be
annexed to said city, could be added
without manifest injury to the owners
thereof, and to do so would be bene
fetal to said city.
Considered as a question of legisla
tion, it would be highly advisable
Personally, would be pleased to make
legally incorporate said lands in saiC
city. L decline, however, to take any
steps in the premises, because l believe
the law to be unconstitutional, anC
any order or finding l might make
would be void for that reason.
CHARLES b. GRAVES,
Judge of the District Court, Igor
County. Kas.